In a criminal justice system where supporting victims is meant to be a priority, why are answers being hidden from those who need them most?

Imagine this scenario. You’ve been involved in a serious road traffic collision; your injuries are so serious that you won’t be able to work for months and a head injury means that you can’t remember the accident at all, let alone how it happened; you’ve run out of money to pay bills and you have no idea whether you will be able to return to your job again; the Police investigated the accident. Surely they will be able to help fill in the blanks for you? They tell you another road user has been charged with a criminal offence for causing the collision and so you instruct civil lawyers to pursue a claim for your injuries and losses. However, you now learn of the legal roadblock of a principle – sub judice (‘under judicial consideration’). Sub judice means that where a criminal case is ongoing, the Police and Procurator Fiscal cannot release any information they have about the incident. In practice, it means that the police officers who investigated your incident, took statements, photographs and measurements at the scene, can’t give any information to your civil lawyers to help them recover compensation on your behalf until after conclusion of the criminal case. In practice, this could take years.

Imagine this next scenario. Your father was killed in a motorcycle collision one year ago; you weren’t there and so you don’t know how it happened. All you know is that his motorcycle was involved in a collision with a lorry. You know the lorry driver has been charged with a crime but neither the Police nor the Procurator Fiscal will tell you what happened to your father until the criminal case against the driver has been concluded because again, the case is sub judice. Can you imagine the mental anguish of these unanswered questions whilst you are trying to grieve your loss?

These are real situations that we at Motorcycle Law Scotland encounter for our clients. We represent vulnerable road users in civil claims relating to road traffic incidents. It seems to us that the focus on priority for criminal prosecutions following a road traffic incident serves as an obstruction to useful justice for our clients.

Indeed, I have never fully understood the reasons why evidence collected by the Police and Procurator Fiscal cannot be released to civil lawyers until after conclusion of criminal proceedings. Civil cases are based on negligence and a criminal conviction is not required to prove negligence. Whilst arising from the same set of circumstances, the criminal and civil proceedings set out to prove different things, with a different standard of proof and a different end result.

Whilst I find that my clients do sometimes obtain a sense of quiet satisfaction from a criminal conviction, their overwhelming focus is ensuring that their recovery from injuries is maximised and their bills paid whilst they can’t work. Far from being a cash bonus, civil claims for compensation provide funding for rehabilitation, prosthetics, physiotherapy and psychological therapy – important practical help for those injured on our roads. Obstructing access to evidence which could be used to help prove a civil case for clients, can mean delay in accessing rehabilitative treatment which can have a knock-on effect on the extent of eventual recovery. Can we really say that the victim is being put at the centre when sub judice is being enforced?

Whilst there are complex legal procedures that can be used to obtain a court order to force the Police to release information to us as civil lawyers, the expense of doing so both for civil lawyers and also the Police seems unnecessary and serves only to delay what could have been released anyway without compromising any distant criminal proceedings.

So, I ask again – what justice is being served by hiding the answers from those who need them most?

Roz Boynton – Associate Solicitor

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